I 

I 



Wisconsin Free Library Commission 
Legislative Reference Department 
Comparative Legislation Bulletin 
No ii 



THE INITIATIVE AND REFER- 
ENDUM 

State Legislation 



MARGARET A. SCHAFFNER 



MADISON, WISCONSIN 
September, 1907 









INTRODUCTION 



In the legislature of 1907 the following bills and 
resolutions relating to the initiative and referendum 
were introduced: Assembly bills 326, 357, 443; Sen-, 
ate bills 135, 177; Assembly joint resolutions 33, 37, 
84 ; Senate joint resolution 17. 

A handy compilation of laws and references relating 
to this subject will be of great use to future legisla- 
tures. 

Charles McCarthy, 
Chief Legislative Reference Department 
Wisconsin Free Library Commission. 



THE INITIATIVE AND REFER- 
ENDUM 

STATE LEGISLATION 



MARGARET A. SCHAFFNER 



Comparative Legislation Bulletin— No 11— September 1907 
Prepared with the co-operation of the Political Science De- 
partment of the University of Wisconsin 



Wisconsin Free Library Commission 

Legislative Keference Dep't 

Madison Wis. 

1907 






N> 



CONTENTS 



Page 

REFERENCES 3 

HISTORY ;■•■• 5 

Local legislation • 6 

Adoption of state constitutions; 6 

State legislation 6 

Special constitutional provisions 7 

Recent constitutional amendments 8 

The advisory system 8 

Validity of the initiative and referendum 9 

LAWS AND JUDICIAL DECISIONS 10 

Foreign countries 10 

United States 13 

SUMMARY 24 

Scope of Direct State Legislation.. 24 

Constitutional law 24 

Statutory law 24 

Public opinion 26 

Party policy 26 

Limitations on the Resubmission of Measures 2*5 

Procedure for Initiative Petitions 27 

Publicity 27 

Completion of petition 27 

Transmission of measure to legislature 2& 

Provision for competing bills 29 

Reference of initiative measures and of competing bills 29 

Procedure for Reference of Measures 29 

Reference by petition 29 

Reference by legislative action 30 

Duty of officials 30 

Enactment of Referred Measures 31 

Elections for submission of measures 31 

Veto power 31 

When operative 31 

Penalties 39 



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REFERENCES 



Aigler, Ralph W. Validity of the initiative and refer- 
endum. Michigan Law Review, May, 1907, vol. '5, p. 
562-6. 

A discussion of recent decisions in the United States. 

Borgeaud, Charles. Practical results which have attended 
the introduction of the referendum in Switzerland. 
Arena, May, 1907, vol. 37, p. 482-6. 
Discusses the effect of the referendum on social legislation. 

Bryce, James. American commonwealth. 3rd ed. New 
York, 1905. 2 vols. 

Gives historical and critical data : ch. 39, Direct legislation 
by the people. 

Commons, John R. Proportional representation with chap- 
ters on the initiative, the referendum, and primary 
elections. 2nd ed. New York, 1907. 

Describes the initiative and referendum in Switzer'and and 
in the United States : app. 3, Direct legislation— the people's 
veto, p. 291-310'. 

Great Britain. Parliamentary debates. June 24, 1907, 
vol. 176, no. 7. 

Discusses the question of introducing the referendum to set- 
tle disputes between the two houses of Parliament, p. 911, 
922-3. 

Oberholtzer, Ellis P. The referendum in America 

New York, 1900. 

An historical and critical discussion : ch. 4, The referendum 
on the entire constitution ; ch. 15, The initiative in America. 

Paine, Robert Treat, Jr. Massachusetts historic attitude 
in regard to representative government: the teach- 
ings of the fathers. Arena, July, 1907, vol. 38, p. 14-18. 

An historical discussion of "the right to instruct*' repre- 
sentatives. 



THE INITIATIVE AND REFERENDUM 



Parsons, Frank. The city for the people. Philadelphia, 

1901. 

An historical and critical discussion of direct legislation in 
ch. 2, p. 255-306. 

Post, Louis F. The initiative and referendum. (In Na- 
tional Municipal League, Proceedings of, 1906, p. 
363-81). 

A brief survey of the development of the initiative and 
referendum in the United States. 

Shirley, George H. Suggestions for the Oklahoma consti- 
tution .... criticism of the Oregon system. Referendum 
News, Aug., 1906, vol. 1, no. 10, p. 5-8. 

Shows the desirability of presenting initiative measures to 
the legislature for the "taking of testimony and the framing 
of competing measures. 

Sullivan, J. W. Direct legislation through the initiative 
and referendum. New York, 1893. 

An excellent presentation of direct legislation. 

Switzerland — Bureau of Federal Statistics. Les vota- 
tions cantonales depuis 1890 (Die kantonalen Volks- 
abstimmungen seit 1890). Berne, 1897. 

A statistical summary of the votes on initiative and refer- 
endum measures in Switzerland from 1890 to 1897. 

United States, Senate. Direct legislation; papers by Elt- 

weed Pomery and others. 55th Cong. 2nd sess. Sei^ 

ate doc. no. 340. (In serial no. 3615.) 

An extensive collection of arguments and digest of litera- 
ture on the subject. 

United States, House of Representatives. Referendum 
and initiative, by Arthur S. Hardy. 57th Cong. 2nd 
sess. House of Representatives, doc. no. 1, p. 482-94. 
(In serial number 4440.) 

A detailed report on direct legislation in Switzerland, made 
to the department* of state by the American minister to 
Switzerland in June, 1902. 

Vincent. John M. Government in Switzerland. New York, 
1900, 

Discusses the operation of the initiative and referendum in 
Switzer and. also gives table of Cantons emploving direct 
legislation, p. 72-4, 84-90. 188-199. and 362. 



HISTORY 

The "Initiative" and the "Referendum" are new 
terms for old institutions. 

The initiative 1 may be defined as the power the people 
reserve to themselves to propose laws and to enact or 
reject the same independent of the legislature. 

The referendum 1 may similarly be described as the 
power the people reserve to themselves to approve or 
reject any act passed by the legislative assembly. 

The forms of the initiative and the referendum may 
be described as optional or obligatory in their opera- 
tion upon the electorate, and as advisory or mandatory 
in their operation upon the legislature. 

The referendum is obligatory when a law must be 
submitted to the people, and optional when a law is 
submitted only upon petition by a certain number of 
voters. 

Under the mandatory initiative and referendum, the 
direct vote of the people is conclusive in the enactment 
of legislation. Under the advisory system, the voters 
can instruct their representatives by direct ballot. To 
make the system effective it is necessary to pledge rep- 
resentatives to obey the will of their constituents when 
expressed by referendum vote. 

Public opinion laws merely secure the expression of 
public opinion on questions of public policy. 

1 Compare the definitions in the constitutions of Mont. Const. 
(Amend. 1906) art. 5. see. 1: Okla. Const. 1907. art. 5, sec. 1; 
Ore. Const. (Amend. 1902) art. 4. sec. I: S. D. Const. (Amend. 
1898) art. 3. sec. 1 : and in the proposed amendments for Me. Re- 
solves. 1907. c. 121 : Mo. Laws. 1907. p. 452 ; and N. D. Laws, 
1907, p. 451. 



6 - THE INITIATIVE AXD REFERENDUM 

Local legislation 

The Swiss Landesgemeinde illustrates an early use 
of direct legislation in local affairs. The old New 
England town meeting, where measures were proposed 
and adopted or rejected at the option of the electors, 
affords another typical example. 
Adoption of state constitutions 

The state wide referendum for the adoption of state 
constitutions is a familiar institution in the United 
States. 

The present constitution of Massachusetts, adopted in 
1780, was the first in this country to be submitted to a 
direct referendum vote. 

At the present time Delaware is the only state in the 
Union in which a referendum is not required for the adop- 
tion of constitutional amendments. 

State legislation 

The right to instruct representatives was commonly 
exercised before the adoption of written constitutions 
in this country. 

The constitution of Massachusetts, adopted in 1780, ex- 
pressly asserts the right of the people "to give instruc- 
tion to their representatives." In 1783 the instructions 
from Boston ran: "It is our unalienable right to commun- 
icate to you our sentiments, and when we shall judge 
necessary or convenient, to give you our instructions on 
any special matter, and we expect you will hold your- 
selves at all times bound to attend to and to observe 
them." 

After the adoption of written constitutions, judi- 
cial decisions generally concurred in the doctrine that 
the legislative assembly had no authority to redelegate 
the legislative power which was constitutionally vested 
in that body. Accordingly the legislature had no 
authority to refer the adoption or rejection of a general 
law to the people of the state. 



THE INITIATIVE AND REFERENDUM 7 

For judicial decisions on this point, compare the follow- 
ing cases: Thorne v. Cramer, 1851, 15 Barb. (N. Y.), 
112; Barto v. Himrod, 1853, 8 N. Y., 483; People v. Collins, 
1854, 33 Mich., 343; State v. Copeland, 1854, 3 R. L, 33; 
Santo v. State, 1855, 2 la., 165; State v. Hayes, 1881, 61 
N. H„ 264. 

For a contrary view, see State v. Parker, 1854, 26 Vt., 
357. 

Special constitutional provisions 

The adoption of constitutional provisions which ex- 
pressly require popular ratification or rejection of 
legislative acts on specified questions, is the next step 
in the history of direct legislation in the United States. 

Provisions for the obligatory state wide referendum 
on special questions are found quite generally in our 
state constitutions. They cover a variety of questions 
including suffrage, state boundaries and annexations of 
territory, the location of the seat of government and of 
state institutions, apportionment, the incurring of state 
indebtedness, the loaning of the state credit, banks and 
banking, state aid to railways, taxation, appropriations, 
sale of school lands, and provisions for education. 

For typical illustrations of the obligatory referendum 
compare the following constitutional provisions: 

Suffrage. Col. Const. 1876, art. 7, sec. 2; N. D. Const. 
1889, art. o, sec. 122; S. D. Const. 1889, art. 7, sec. 2; 
Wis. Const. 1848, art. 3, sec. 1. 

State boundaries and annexations of territory. W. Va. 
Const. 1872, art. 6, sec. 11. 

Location of seat of government. Col. Const. 1876, art. 
8, sec. 2; Kan. Const. 1859, art. 15, sec. 8; Mont. Const. 
1889, art. 10, sec. 2; Ore. Const. 1857, art. 14, sec. 1; Pa. 
Const. 1873, art. 3, sec. 28; S. D. Const. 1889, art. 20'; 
Wash. Const. 1889, art. 14, sec. 1. 

Location of state institutions. Tex. Const. 18 76, art. 7, 
sees. 10 and 14; Wyo. Const. 1889, art. 7, sec. 23. 

Apportionment. W. Va. Const. 1872, art. 6, sec. 50. 

Public credit. Cal. Const. 1879, art. 16; Col. Const. 
1876, art. 11, sec. 5; Id. Const. 1889, art. 8, sec. 1; 111. 
Const. 1870, art. 4, sec. 18; la. Const. 1857, art. 7, sec. '5; 



8 THE INITIATIVE AND REFERENDUM 

Kan. Const. 1859, art. 11, sec. 6; Ky. Const. 1891, sec. 50; 
Mo. Const. 1875, art. 4, sec. 44; Mont. Const. 1889, art. 13, 
sec. 2; N. J. Const. 1844, art. 4, sec. 6; N. Y. Const. 
(Amend. 1905) art. 7, sec. 4; R. I. Const. 1844, art. 4, 
sec. 13; S. C. Const. 1895, art. 10, sec. 11; Wash. Const. 
1889, art. 8, sec. 3; Wyo. Const. 1889, art. 16, sec. 2. 

Banks and 'banking. 111. Const. 1870, art. 11, sec. 5; la. 
Const. 1857, art. 8, sec. 5; Kan. Const. 1859, art. 13, sec. 
8; Mo. Const. 1875, art. 12, sec. 26; and Wis. Const. 1848, 
art. 11, sec. 5. Wisconsin provides for a double refer- 
endum, first, to determine whether a law shall be sub- 
mitted, and then, by a second referendum, whether the 
law submitted shall be adopted. 

State aid to railways. Minn. Const. (Amend. 1860) art. 
9, sec. 2. 

Taxation. Col. Const. 1876, art. 10, sec. 11; Id. Const. 
1889, art. 7, sec. 9; 111. Const. 1870, art. 4, sec. 33; Mont. 
Const. 1889, art. 12, sec. 9; Utah, Const. 1895, art. 13, sec. 7. 

Appropriations for public buildings. Col. Const. 1876, 
art. 11, sees. 3-5; 111. Const. 1870, art. 4, sec. 33. 

Sale of school lands. Kan. Const. 1859, art. 6, sec. 5. 

Provisions for education. Tex. Const. 1876, art. 7, sees. 
10 and 14. 

Recent constitutional amendments 

Within recent years a number of states have adopted 
constitutional provisions establishing the initiative and 
referendum for general state legislation. These amend- 
ments provide for the optional initiative and referen- 
dum, whereas the older constitutional provisions for 
the referendum on special state questions are obligatory. 

For recent constitutional provisions for direct state 
legislation, see S. D. Const. (Amend. 1898) art. 3, sec. 
1; Utah, Const. (Amend. 1900) art. 6, sees. 1 and 22; Ore. 
Const. (Amend. 1902) art. 4, sec. 1; Nev. Const. (Amend. 
1904) art. 19, sees. 1 and 2, (provides referendum only); 
Mont. Const. (Amend. 1906) art. 5, sec. 1; Okla. Const, 
1907, art. 5, sees. 1-4, 6-8, and art. 24, sec. 3. 

For proposed constitutional amendments, see Me., Re- 
solves, 1907, c. 121; Mo., Laws, 1907, p. 452-3; N. D., Laws, 
1907, p. 451-3. 

Advisory systems 

The difficulty of securing constitutional amendments 



THE INITIATIVE AND REFERENDUM 9 

for the initiative and referendum has led to the devel- 
opment of other methods for securing at least partial 
systems of direct state legislation. 

Public opinion laws. A public opinion system was 
enacted in Illinois in 1901. The electors of that state 
have voted upon a number of legislative questions ; 
but as the candidates for the legislature were not 
pledged to obey the wishes of their constituents, these 
expressions of opinion have not been very effective in 
securing the legislation desired. 

See 111. Laws, 1901, p. 198. 

The advisory system within parties. The advisory 
system within the parties at primary elections w r as 
adopted in Texas in 1905. 

See Tex. Laws. 1905, c. 11, sec. 140. 

Validity of the initiative and the referendum 

The validity of legislation for the initiative and 
referendum has been sustained in a number of recent 
court decisions. 

In 1903 the supreme court of Oregon held that the 
initiative and referendum amendment to the constitu- 
tion did not abolish nor destroy the republican form of 
government, nor substitute another in its place. The 
court declared : "The representative character of the 
government still remains. The people have simply re- 
served to themselves a larger share of legislative 
power." Kadderly v. Portland, 1903, 44 Ore., 118. 

An interesting discussion as to what constitutes repre- 
sentative government is given by Madison in The Federal- 
ist, 302. 

For additional judicial decisions on direct legislation, 
see State ex rel. Lavin et al. v. Bacon et al., 1901, 14 S. 
D., 284; and In re Pfahler, 1906, 88 P., 270. 



10 THE INITIATIVE AND REFERENDUM 



LAWS AND JUDICIAL DECISIONS 2 



Foreign countries 

Switzerland. 3 Fed. Const. 1874, art. 89. Federal 
laws,, enactments, and resolutions are to be passed only 
by the agreement of the two councils. Federal laws 
must be submitted for acceptance or rejection by the 
people if the demand is made by 30,000 voters or by 
8 Cantons. The same principle applies to federal 
resolutions which have a general application and which 
are not of an urgent nature. 

art. 120. When either council of the Federal As- 
sembly passes a resolution for the complete amendment 
of the federal constitution and the other council does 
not agree, or when 50,000 voters demand the complete 
amendment, the question whether the federal constitu- 
tion ought to be amended is, in either case, to be sub- 
mitted to a referendum vote, and if the majority of the 
citizens who vote pronounce in the affirmative, there 
must be a new election of both councils for the pur- 
pose of preparing the complete amendment. 



2 The present study concerns itself only with the initiative and 
the referendum for general state legislation. Constitutional pro- 
visions for the obligatory referendum on special state questions, 
and state legislation relating to the initiative and referendum in 
local affairs, are not considered. 

3 See United States. 57th Cong. 2nd sess. House of Rep. doc. 
no. 1 (in serial no. 444CH p. 982-94, for an excellent account of 
the Swiss referendum and initiative, by Arthur S. Hardy, formerly 
U. S. minister to Switzerland. 



THE INITIATIVE AND REFERENDUM 11 

Fed. Law, June 17, 1874. This law provides the 
procedure for referendums. 

Fed. Const. (Amend. 1891) art. 121. Partial amend- 
ment may take place through the forms of popular 
initiative or of those required for passing federal laws. 
The initiative may be used when 50,000 voters present 
a petition for the enactment, the abolition, or the altera- 
tion of certain articles of the federal constitution. 
When several subjects are proposed for amendment or 
for enactment in the federal constitution by means of 
the initiative, each must form the subject of a special 
petition. Petitions may be presented in the form of 
general suggestions or of finished bills. When a peti- 
tion is presented in the form of a general suggestion, 
and the Federal Assembly agrees thereto, it is the duty 
of that body to elaborate a partial amendment in the 
sense of the initiators, and to refer it to the people and 
the Cantons, for acceptance or rejection. If the Federal 
Assembly does not agree to the petition, then the ques- 
tion of whether there shall be a partial amendment at 
all must be submitted to the vote of the people, and if 
the majority of voters express themselves in the affima- 
tive, the amendment must be taken in hand by the Fed- 
eral Assembly in the sense of the people. 

When a petition is presented in the form of a finished 
bill, and the Federal Assembly agrees thereto, the bill 
must be referred to the people and the Cantons for ac- 
ceptance or rejection. In case the Federal Assembly 
does not agree, that body can elaborate a bill of its 
own, or move to reject the petition and submit its own 



12 THE INITIATIVE AND REFERENDUM 

bill or motion to the vote of the people and the Cantons 
along with the petition. 

art. 123. The amended federal constitution, or the 
amended part thereof, is to be in force when it has 
been adopted by a majority of the citizens who take 
part in the vote thereon, and by a majority of the states. 
In making up a majority of the states the vote of a half 
Canton is counted as a half vote. 

Fed. Law, June 27, 1892. This law provides the 
mode of procedure for the initiative. 

The Cantons. All the Cantons possess the initiative 
either in constitutional or legislative matters, or both. 
All except Freiburg have some form of the referendum 
either obligatory or optional, or both. 

Great Britain. The question of introducing the ref- 
erendum to settle disputes between the two houses 
was recently discussed in the British Parliament. 

See the Parliamentary Debates for June 24, 1907, p. 
911, 922-3. 

Commonwealth of Australia. Const. 1900. This 
constitution was ratified by referendum vote taken in 
the separate colonies in Australia from 1898 to 1900. 
Under chapter 8, section 128, of the constitution, pro- 
posed amendments must be submitted to a referendum 
vote. A double majority is required for ratification, 
namely, a majority of all the electors voting. and also a 
majority vote in more than half of the states. 

Norway. An interesting use of the referendum was 
made by the people of Norway in their separation from 
Sweden. A Resolve of the Storthing on July 28, 1905, 
provided for a referendum vote of the electors over the 



THE INITIATIVE AND REFERENDUM 13 

whole country to decide the question of the dissolution 
of the union. The referendum took place on August 
13, 1905, and resulted in a practically unanimous vote 
for the dissolution. 
United States 

Illinois. Laws, 1901, p. 198. Under this law the 
submission of any question for an expression of public 
opinion may be secured on a written petition signed by 
10% of the registered voters of the state. The petition 
must be filed with the proper election officers not less 
than sixty days before the election at which the ques- 
tion is to be considered. Not more than three propo- 
sitions may be submitted at the same election and they 
are to be submitted in the order of filing. 

Maine. (Proposed Const. Amend.) Resolves, 1907, 
c. 121. This amendment applies to statutory but not 
to constitutional law. Certain specific exemptions are 
also made for statutory law. 

Emergency bills are not subject to the referendum. 
Such bills may include measures immediately necessary 
for the preservation of the public peace, health, or 
safety, but may not include (1) an infringement of 
the right of home rule for municipalities; (2) a fran- 
chise or license to a corporation or an individual, ex- 
tending longer than one year; or (3) provision for the 
sale, or purchase, or renting for more than five years 
of real estate. The emergency and also the facts 
creating the same must be set forth in the preamble of 
the act. A two-thirds vote of all the members elected 



14 THE INITIATIVE AND REFERENDUM 

to each house is necessary to pass an emergency meas- 
ure. 

Initiative bills may propose any measure, including 
bills to amend or repeal emergency legislation, but not 
to amend the state constitution. The petition must 
set forth the full text of the measure proposed and 
must be signed by not less than 12,000 electors. Pro- 
posed measures must be submitted to the legislature, 
and unless they are enacted without change, they must 
be submitted to the electors together with any amended 
form, substitute, 01 recommendation of the legislature, 
in such a manner that the people can choose between 
the competing measures, or reject both. When there 
are competing bills and neither receives a majority of 
the votes given for and against both, the one receiving 
the most votes is to be resubmitted by itself at the next 
general election, to be held not less than sixty days after 
the first vote thereon ; but no measure is to be resub- 
mitted unless it has received more than one-third of the 
votes given for and against both. An initiative meas- 
ure enacted by the legislature without change is not 
to be referred unless a popular vote is demanded by a 
referendum petition. If the governor vetoes any 
measure initiated by the people and passed by the legis- 
lature without change and his veto is sustained by the 
legislature, the measure is to be referred to the people 
at the next general election. 

The legislature may enact measures expressly con- 
ditioned upon the people's ratification by referendum 
vote. 

Petitions for a reference of any act passed by the 






THE INITIATIVE AND REFERENDUM 15 

legislature must be signed by not less than 10,000 elec- 
tors, and must be filed within ninety days after the re- 
cess of the legislature. The governor is required to 
give notice of the suspension of acts through referen- 
dum petitions and make public proclamation of the 
time when the referred measure is to be voted upon. 
Referred measures do not take effect until thirty days 
after the governor has announced their ratification by 
a majority of the electors voting thereon. 

Missouri. (Proposed Const. Amend. 4 ) Laws, 
1907, p. 452-3. The initiative and referendum apply 
to statutory law and to constitutional amendments. 
Initiative petitions require not more than 8% of the 
legal voters in each of at least two-thirds of the con- 
gressional districts in the state. Every petition must 
include the full text of the measure proposed, and must 
be filed not less than four months before the election 
at which it is to be voted upon. 

The referendum may be ordered upon a petition 
signed by 5% of the legal voters in each of at least 
two-thirds of the congressional districts, or by the 
legislative assembly. Emergency measures are exempt 
from the referendum. Laws making appropriations 
for the state government, for the state institutions, and 
for the public schools are also exempt. Referendum 
petitions must be filed not more than ninety days after 
the final adjournment of the legislative session. A 
referred measure becomes a law when approved by a 
majority of the votes cast thereon. 



* This amendment will be submitted to the voters in Nov., 1908, 
for adoption or rejection. 



16 THE INITIATIVE AND REFERENDUM 

Montana. Const. (Amend. 1906) art. 5, sec. 1. 
Direct legislation is established for statutory, but not 
for constitutional law. Certain specific exemptions 
are also made for statutory law. The referendum may 
not be invoked for emergency measures. 

Initiative petitions require 8% of the legal voters 
from two-fifths of the whole number of counties of 
the state. They must include the full text of the meas- 
ure proposed, and must be filed not less than four 
months before the election at which they are to be 
voted upon. 

Referendum petitions require 5% of the voters from 
each of two-fifths of the counties and they must be 
filed not later than six months after the final adjourn- 
ment of the legislative session. 

Any measure referred to the people is to remain in 
full force and effect unless the referendum petition is 
signed by 15% of the legal voters of a majority of the 
whole number of the counties of the state, in which 
case, the law remains inoperative until it is passed upon 
at an election and the result has been determined as 
provided by law. 

Laws, 1907, c. 62. This law establishes the proced- 
ure for carrying the direct legislation provisions of the 
constitution into effect. It definitely sets forth the re- 
quirements as to the form of petitions ; the verification 
of signatures ; the duties of officials in submitting peti- 
tions ; the publication and distribution of the title and 
text of measures and of arguments ; the manner of con- 
ducting the elections and of canvassing the vote ; and 



THE INITIATIVE AND REFERENDUM IT 

the proclamation of the governor declaring the enact- 
ment of the approved measures. 

Provision is made for the official distribution of the 
text of measures to all the electors in the state. In ad- 
dition, arguments for or against any proposed meas- 
ures may be supplied at the expense of the parties inter- 
ested; and such arguments when printed in pamphlet 
form of specified size and style, will be mailed by the 
state with the official copy of the measure to each 
voter. 

Parties filing initiative petitions may supply argu- 
ments for and opposing parties may supply arguments 
against the measures proposed. In the case of refer- 
endums, any person may supply arguments for or 
against the referred measures ; but the secretary of 
state is not obliged to receive any pamphlets for distri- 
bution unless a sufficient number is furnished to 
supply one to every legal voter in the state. 

Nevada. Const. (Amend., 5 1904) art. 19, sees. 1 
and 2. A referendum may be ordered on petition of 
10% of the voters. A referred measure becomes 
operative when approved by a majority vote. 

North Dakota. (Proposed Const. Amend. 6 ) Laws, 
1907, p. 451-3. The initiative and referendum apply 
to statutory law T and to constitutional amendments, but: 
the same constitutional amendment may not be pro- 
posed oftener than once in ten years. 

Initiative petitions require not more than 8% of 
the legal voters, they must include the full text of the 

5 This amendment does not provide for the initiative, and the 
procedure provided for the referendum is indefinite. 

6 This amendment must also be passed by the next legislature 
before being submitted to the peop.e for adoption or rejection. 



18 THE INITIATIVE AND REFERENDUM 

measure proposed, and must be filed not less than 
thirty days before any regular session of the legislature. 
The proposed measure must be transmitted to the 
legislature as soon as it convenes. Initiative meas- 
ures take precedence over all other measures in the 
legislative assembly, except appropriation bills, and 
must be enacted or rejected without change or amend- 
ment within forty days. Any initiative measure 
enacted by the legislature is subject to referendum peti- 
tion, or it may be referred by the legislature. If it is 
rejected, or no action is taken upon it by the legis- 
lature within the forty day limit, it must be submitted 
to the people for approval or rejection at the next 
regular election. The legislature may reject any meas- 
ure proposed by initiative petition and propose a com- 
peting bill to accomplish the same purpose. This gives 
opportunity for publicity, for committee hearings, 
for the taking of testimony, for debate, and for delib- 
erative consideration. When an initiative measure and 
a competing bill are both proposed, they must both be 
submitted to the people. In case conflicting measures 
submitted at the same election are both approved by a 
majority of the votes severally cast for and against the 
same, the one receiving the highest number of affirma- 
tive votes becomes valid and the other is thereby re- 
jected. 

The referendum does not apply to emergency meas- 
ures. However, provision is made against an undue 
use of the emergency clause by the requirement that 
the facts creating the emergency be stated in one sec- 
tion of the bill, and if upon an aye and nay vote in 



THE INITIATIVE AXD REFEREXDU31 19 

each house, two-thirds of all the members elected to 
each house vote on a separate roll call in favor of the 
law going into instant operation, it becomes operative 
upon approval of the governor. 

Referendum petitions require not more than 5% of 
the legal voters and must be filed not more than ninety 
•days after the final adjournment of the legislature. 
Any constitutional amendment or other measure re- 
ferred to the people is to take effect when approved by 
a majority of the votes cast thereon, and is to be in 
force from the date of the official declaration of the 
vote. 

This amendment is self executing, but legislation 
may be enacted to facilitate its operation. 

Oklahoma. Const. 1907, art. 5, sees. 1-4, 6-8, and 
art. 24, sec. 3. The initiative and referendum apply 
to constitutional and to statutory law. Emergency 
measures are exempt from the referendum provisions. 

Legislative measures may be proposed by S%, and 
amendments to the constitution by 15% of the legal 
voters. Initiative petitions must contain the full text 
of the measure proposed. They must be filed with the 
secretary of state and be addressed to the governor 
who must submit them to the people. 

A referendum may be ordered by 5% of the legal 
voters. Petitions for referred measures must be filed 
not more than ninety days after the final adjournment 
of the legislature. 

Initiative measures require a majority of the votes 
cast at the election, while only a majority of the votes 
cast on a referred measure are necessarv to °;ive it ef- 



20 THE INITIATIVE AND REFERENDUM 

feet. The referendum may be demanded by the peo- 
ple against one or more items, sections, or parts of any 
act of the legislature. 

The explicit statement is also inserted that "the 
reservation of the powers of the initiative and refer- 
endum shall not deprive the legislature of the right to 
repeal any law, or propose or pass any measure which 
may be consistent with the constitution' of the state 
and the constitution of the United States." 

In the light of the experience of older states that have 
adopted direct legislation in state affairs, this statement 
seems superfluous. The provisions of the state constitu- 
tions which reserve direct legislative power for the people 
do not contemplate the restriction of initiative power in; 
the legislature; the power constitutionally delegated to 
representatives to initiate measures or to repeal laws still 
remains. The people merely reserve the right to propose 
measures and to enact or reject either initiative or legis- 
lative measures independent of the legislative assembly. 
For a discussion of this point, see Kadderly v. Portland, 
1903, 44 Or. 118. 

Oregon. Const. (Amend., 1902) art. 4, sec. 1. The 
initiative and referendum apply to constitutional and 
to statutory law, but the referendum may not be in- 
voked for emergency measures. 

Every initiative petition must contain the full text of 
the measure proposed, must be signed by at least 8% 
of the legal voters, and must be filed not less than four 
months before the election at which it is to be voted 
upon. 

Referendum petitions must be signed by at least 5% 
of the voters, and must be filed not more than ninety 
days after the final adjournment of the legislative as- 
sembly. 

Any measure referred to the people becomes a law 



THE IXITIATITE AXD REFEREXDUJI 21 

when it is approved by a majority of the votes cast 
"thereon. 

The initiative and referendum amendment does not 
abolish or destroy the republican form of government or 
substitute another in its place. The representative char- 
acter of the government still remains .... 

Under this amendment, it is true, the people may ex- 
ercise a legislative power and may in effect veto bills 
passed and approved by the legislature and the governor, 
but the legislative and executive departments are not de- 
stroyed .... Laws proposed and enacted by the people under 
the initiative laws of the amendment are subject to the 
same constitutional limitations as other statutes and may 
T)e amended or repealed by the legislature at will. Kad- 
derly v. Portland. 1903, 44 Or. 118. 

Laws, 1907, c This act facilitates the opera- 

tion of the initiative and referendum powers reserved 
by the people, regulates elections thereunder, and pro- 
vides penalties for violations. The law definitely pre- 
scribes the form of initiative and referendum petitions : 
the manner of verifying' signatures : the duties of offi- 
•cials in submitting measures : the method of canvass- 
ing and making returns : and the declaration of the 
-enactment of approved measures. 

The following definite provision is made for the 
publication and distribution of the text of proposed 
measures and for arguments advocating or opposing 
the questions submitted : — Before any election at which 
any proposed law or amendment to the constitution is 
to be submitted to the people, the secretary* of state is 
required to have printed in pamphlet form the text of 
each measure to be submitted, together with the title as 
it will appear on the official ballot. Parties filing ini- 
tiative petitions have the right to file any arguments 
advocating- such measures. In the case of referen- 



22 THE INITIATIVE AND REFERENDUM 

dums, any person has the right to file arguments for 
or against the referred measures. The parties offer- 
ing arguments for distribution must pay all the ex- 
pense for paper and printing to supply one copy with 
every copy of the measure to be printed by the state. 
The cost of printing, binding, and distributing the 
measures proposed, and of binding and distributing 1 
the arguments, are to be paid by the state as a part of 
the state printing. Within a specified time before any 
election at which measures are to be voted upon, the 
secretary of state is required to transmit copies of each 
measure together with the arguments submitted, to the 
voters within the state. 

See Stevens v. Benson, 1907, 91 P. 577. 

South Dakota. Const. (Amend., 1898) art. 3, sec. 
1. Under this amendment the people expressly re- 
serve the right to propose measures which the legisla- 
ture is required to enact and to submit to a vote of the 
electors. They also reserve the right to require a ref- 
erendum on any law which the legislature may have 
enacted, except laws necessary for the immediate 
preservation of the public peace, health, or safety, and 
laws for the support of the state government and its 
existing public institutions. 

Xot more than 5% of the qualified voters are re- 
quired to invoke either the initiative or the referen- 
dum. 

Pol. Code, 1903, sees. 21-7. Initiative petitions 
must contain the substance of the law desired. Refer- 
endum petitions must describe the law to be submitted 
by setting forth the title together with the date of pas- 
age and approval ; such petitions must be filed within 



THE INITIATIVE AXD REFERENDUM 23 

ninety days after the adjournment of the legislature. 
Initiative or referendum measures approved by a ma- 
jority of the votes cast thereon become law and are to 
be in force immediately after the result has been offi- 
cially determined. (Laws, 1899, c. 93.) 

The legislature having declared that the provisions of 
an act are necessary for the immediate preservation and 
support of the existing public institutions of the State, 
that declaration is conclusive upon this court. Such an act 
is clearly not within the referendum clause of sec. 1 as 
amended, of art. 3 of the constitution. State ex rel. Lavin 
et al. v. Bacon et al. 1901, 14 South Dakota, 394. 

Texas. Laws, 1905, c. 11, sec. 1-10. Under the 
primary election law, 10% of the voters in any politi- 
cal party may propose policies and candidates and se- 
cure a direct party vote thereon. Petitions are to be 
filed with the chairman of the county or precinct execu- 
tive committee at least five days before the tickets are 
to be printed and the chairman may require a sworn 
statement that the names of the. applicants are genuine. 

The number of signatures required for a petition is 
to be determined by the votes cast for the party nom- 
inee for governor at the preceding election. It is the 
duty of the chairman to submit any proposition for 
which a petition is filed, and the delegates selected at 
that time are to be considered instructed for which- 
ever proposition a majority of the votes is cast. Pro- 
vision is also made that all additional expense of print- 
ing any proposition on the official primary ballot is to 
be paid for by the parties requesting the same. 

Utah, Const. (Amend. 1900) art. 6, sees 1 and 22. 
This amendment provides for direct legislation, but 
the amendment is not self executing and three succes- 
sive legislatures have refused to put it in force. 



24 THE INITIATIVE AXD REFERENDUM 



SUMMARY 



The leading provisions relating to direct state legis- 
lation may be summarized under the scope of direct 
legislation, limitations on the re-submission of meas- 
ures, procedure for initiative petitions, procedure for 
reference of measures, enactment of referred meas- 
ures, and penalties. 

SCOPE OF DIRECT LEGISLATION 

In the United States direct legislation has been ap- 
plied to constitutional and to statutory law ; it has also 
been employed to obtain expressions of public opinion 
on state affairs, and to secure instructions as to party 
policy within the political parties. 

Constitutional law 

The constitutional amendments for direct legislation 
in state affairs apply generally to constitutional law. 

Exceptions. Some of the states exempt constitu- 
tional amendments from the operation of the initiative. 

See Mont. Const. (Amend. 1906) art. 5, sec. 1; Me. (Pro- 
posed Const. Amend.) Resolves, 1907, c. 121. 

Statutory law 

As regards statutory law, most of the amendments 
provide for specific exceptions to the use of direct legis- 
lation and also provide for emergency measures. 



THE INITIATIVE AND REFERENDUM 25 

Exceptions. The specific exceptions generally re- 
late to appropriations for the current expenses of the 
state government, for the maintenance of the state in- 
stitutions, and for the support of the public schools. 

Compare the provisions of Me., Mo., Mont, and S. D. 

Emergency measures. Laws necessary for the im- 
mediate preservation of the public peace, health, or 
safety, are generally exempt from the operation of the 
referendum. 

See Me. (Proposed Const. Amend.) Resolves, 1907, c. 
121; Mo. (Proposed Const. Amend.) Laws, 1907, p. 452-3; 
Mont. Const. (Amend. 1906) art. 5, sec. 1; N. D. (Pro- 
posed Const. Amend.) Laws, 1907, p. 451-3; Okla. Const. 
1907, art. 5, sec. 2; Ore. Const. (Amend. 1902) art. 4, sec. 
1; S. D. Const. (Amend. 1898) art. 3, sec. 1. 

A safeguard against the undue use of emergency 
measures is provided in a number of cases by requir- 
ing the- declaration of the emergency and a separate 
roll call and vote on the question of the emergency. 
A two-thirds majority, on an aye and nay vote, of all 
the members elected to each house is also sometimes 
required for the passage of emergency bills. 

Compare the provisions of Me. and N. D. 

A further safeguard against the abuse of the emer- 
gency clause by the legislature is secured by an 
enumeration of laws which may not be enacted as 
emergency measures. 

Thus, the proposed amendment for Maine provides that 
an emergency bill shall not include (1) the infringement 
of the right of home rule for municipalities^ (2) a fran- 
chise or a license to a corporation or an individual to ex- 
tend longer than one year; or (3) provision for the sale 
or purchase or renting for more than five years of real 
estate. 



26 THE INITIATIVE AND REFERENDUM 

The courts have uniformly held that the question as 
to whether a law is necessary for the immediate pres- 
ervation of the public peace, health, or safety, is for the 
legislature and is not subject to judicial review. 

See State v. Bacon, 1901, 14 S. D., 394; and Kadderly 
v. Portland, 1903, 44 Ore., 118. 

Public opinion 

Public opinion system. Under public opinion laws 
pressure may be brought to bear upon legislators in 
the enactment of law. 

See 111. Laws, 1901, p. 198. 

Advisory system. The advisory system goes farther 
in the same direction and instructs representatives as 
to legislative action. 
Party policy 

Advisory system within the parties. The use of the 
advisory system within the parties at primary elections 
enables the voters in any political party to propose poli- 
cies and candidates and secure a direct party vote 
thereon. 

See Tex. Laws, 1905, c. 11, sec. 140. 

LIMITATIONS OX THE RESUBMISSION OF MEASURES 

The possible abuse of direct legislation through a 
frequent resubmission of defeated propositions, is pro- 
vided against in a number of states. 

N. D. (Proposed Const Amend. 1907) provides that the 
same constitutional amendment shall not be proposed 
oftener than once in ten years. 

In Okla. Const. 1907, art. 5, sec. 6, any measure rejected 
by the people cannot be again proposed by the initiative 
within three years by less than 25% of the legal voters. 



THE INITIATIVE AXD REFERENDUM 27 

PROCEDURE FOR INITIATIVE PETITIONS 

The procedure for initiative measures varies in the 
several states. Differences exist in the requirements 
for publicity, the completion of the petition, the trans- 
mission of measure- to the legisltaure, the provision 
for competing bills, and the reference of initiative and 
of conflicting measures. 
Publicity 

Publicity is secured through the publication of the 
text of initiative measures and the distribution of ar- 
guments for and against proposed bills. 

Publication of text of measure. Most of the states 
require the publication of the full text of initiative and 
referendum measures. 

Compare the provisions for Me.. Mo.. Mont., X. D., Okla., 
Ore., and S. D. 

Distribution of arguments. Certain states also make 
provision for the distribution of arguments. 

For elaborate provisions for the distribution of argu- 
ments for and against proposed measures, see Mont. Laws, 
1907, c. 62, and Ore. Laws, 1907, c. 226. 

Completion of petition 

The percentage of voters required to sign petitions, 
the basis of the percentage, the verification of signa- 
tures, and the method of filing petitions, vary consid- 
erably with the different states. 

Percentage of voters. The percentage ranges from 
5% to 15%. 

The percentages for the different states are as follows: 
8 per cent for Mo., Mont., X. D., Okla., and Ore.; and 5 
per cent for S. D. In Mo. the 8 per cent is required only 
from each of at least two-thirds of the congressional dis- 
tricts, while in Mont, at least two-fifths of the whole 
number of counties must each furnish 8 per cent toward 



28 THE INITIATIVE AND REFERENDUM 

making up the required 8 per cent for the entire state. 
Okla. requires 15 per cent to propose constitutional amend- 
ments. Instead of requiring a certain percentage, Me. 
requires a fixed number of 12,000 signatures for initiative 
measures. 

Basis of percentage. The percentage required is 
uniformly based upon the vote cast at the last preced- 
ing general election. 

In S. D. and Mont, the per cent is based on the vote for 
governor; in Ore., Mo., and N. D., on the vote for justices 
of the supreme court; and in Okla. on the vote for the 
state office receiving the highest number of votes. 

Verification of signatures. The methods for verify- 
ing signatures are definitely prescribed in the laws en- 
acted to facilitate the operation of the several amend- 
ments. 

See S. D. Laws, 1899, c. 93; Ore. Laws, 1907, c. 226; and 
Mont., Laws, 1907, c. 62. 

Filing. Provision is generally made that initiative 
petitions be filed with the secretary of state. The time 
for filing varies according to whether the petition is to 
be presented to the legislature, or is to be voted upon 
by the people without legislative consideration. 

Time. The time for filing is not less than four months 
before the election in Ore., Mont, and Mo.; not less than 
thirty days before any regular session in N. D.; and at 
least thirty days before the close of the session in Me. 

Transmission of measures to legislature 

The requirement that all proposed measures be 
transmitted to the legislature gives opportunity for 
public hearings, for testimony, for debate, and for de- 
liberative consideration. ■ 

Compare the provisions of Me. (Proposed Const. Amend.) 
Laws, 1907, c. 121, and of N. D. (Proposed Const. Amend.) 
Laws, 1907, p. 451-3. 



THE INITIATIVE AXD REFEREXDUM 29 

Precedence of initiative measures. Provision is 
sometimes made that initiative measures take prece- 
dence over all other measures in the legislature except 
appropriation bills. 

See the proposed amendment for N. D. 

Limitations on legislative action. The provision 
that the legislature must enact the measure submitted 
is a restriction found in only one of the states. 

S. D. Const. (Amend. 1898) art. 3, sec. 1. 

N. D. requires that the legislature enact or reject the 
proposed measure within forty days. 

Provision for competing bills 

An important feature in several states is the provi- 
sion that the legislature may submit a competing bill 
if it disapproves of the initiative measure. This af- 
fords opportunity for deliberative consideration of con- 
flicting measures, and to some extent protects the 
people against the bills of extremists. 

Reference of initiative measures and of com- 
peting bills 

Competing bills are to be submitted with initiative 
measures so that the electors may choose between them 
or reject both. 

See Me. (Proposed Const. Amend.) Resolves, 1907. c. 
121, and N. D. (Proposed Const. Amend.) Laws, 1907, p. 
451-3. 

PROCEDURE FOR REFERENCE OF MEASURES 

Measures may be referred either by petition or by 
legislative action. 
Reference by petition 

The requirements for reference by petition vary both 



30 THE IXITIATITE AXD REFERENDUM 

as to the percentage of voters required and the man- 
ner of filing petitions. 

Percentage of voters. The required percentage 
ranges from 5% to 10%. 

The percentages are 5 per cent for Mo., Mont, N. D., 
Okla., Ore., and S. D., while Nev. requires 10 per cent. 
The requirements for two-thirds of the congressional dis- 
tricts in Mo., and for two-fifths of the counties in Mont. 
holds for referendum as well as for initiative petitions.. 
Me. requires a fixed number of 10,000 signatures. 

Mont, has a provision that any measure referred to the 
people is to remain .in full force unless the petition is 
signed by 15 per cent of the legal voters of a majority of 
the whole number of counties in the state, in which case 
the law remains inoperative until it is passed upon at an 
election and the result is officially determined. 

Basis of percentage. The basis of the required per- 
centage is the same as for initiative petitions. 

Filing. Petitions are to be filed with the secretary 
of state within a specified time. 

Time. The time for filing is not less than ninety day& 
after the legislative session in S. D., Ore., Okla., Mo., Me.,, 
and N. D.; and not later than six months after the session 
in Mont. 

Reference by legislative action 

The legislature may enact measures expressly con- 
ditioned upon the people's ratification by referendum 
vote. 

Compare the constitutional provisions of Ore., Mont., 
and Okla., and the proposed amendments for Me., Mo., and 
N. D. 

Vote required. Montana requires a majority vote of tue 
members elect to refer an act of the legislative assembly. 

Duty of officials 

In submitting initiative and referendum petitions to 
a vote of the people, the secretary of state and all 
other officers are to be guided by the general laws un- 



THE IXITIATIYE AXD REFERENDUM 31 

til legislation is especially provided. 

Compare the provisions for Me., Mo., Mont., N. D., and 
Ore. 

ENACTMENT OF REFERRED MEASURES 

Elections for submission of measures 

Measures may be referred for enactment or rejec- 
tion at general or at special elections. 

General Elections. S. D. provides for submission of 
measures only at general elections. 

Special elections. Provision is made for special elec- 
tions to be ordered, by the legislature in Mo., Mont, and 
Ore.; by law in N. D. ; and by the legislature or the gov- 
ernor in Okla. and Me. Under the Me. provision the gov- 
ernor must order a special election, if so requested in the 
petition. 

Veto power 

The veto power of the governor does not extend to 
measures referred to the people. 

See S. D., Ore., Mont., Okla., Me., Mo., and N. D. 

The proposed amendment for Me. requires that if any 
measure initiated by the people and passed by the legisla- 
ture without change, is vetoed by the governor, and if his 
veto is sustained by the legislature, the measure must be 
referred to the people at the next general election. 

When operative 

The provisions for the several states generally re- 
quire that any measure referred to a vote of the people 
is to become law and be in force from the date of the 
official declaration that it has been approved by a ma- 
jority of the votes cast thereon. 

In Okla. initiative measures must be approved by a 
majority of the votes cast at the election. 

In Me. provision is made that initiative measures en- 
acted by the legislature without change, are not to be re- 
ferred unless a referendum vote is demanded. When in- 
itiative and competing bills are submitted at the same 
election, and neither receives a majority of the votes 
given for and against both, the one receiving the most 



32 THE INITIATIVE AND REFERENDUM 

votes is to be resubmitted by itself; but no measure is to 
be resubmitted unless it received more than one-third of 
the votes. 

Under the N. D. provision, if conflicting measures sub- 
mitted at the same election are both approved by a major- 
ity severally cast for and against each, the one receiving 
the highest number of affirmative* votes is enacted. 

PENALTIES 

The laws enacted to facilitate the operation of the 
direct legislation amendments provide penalties for the 
unlawful signing of petitions. 

In S. D., Ore., and Mont., the unlawful signing of in- 
itiative or referendum petitions is punishable by fine, or 
by imprisonment, or both, in the discretion of the court. 
In S. D. (Laws, 1899, c. 93) the fine is not to exceed 
$•500.00 nor the imprisonment five years. In Ore. (Laws, 
1907, c. 226 ) and in Mont. (Laws, 1907, c. 62) the fine is 
fixed at the same limit and the imprisonment is not to 
exceed two years. 



.-. 






